(the prohibition against multiplicity is necessary to ensure compliance with the constitutional and statutory restrictions against double jeopardy; offenses are multiplicious if one is a lesser-included offense of the other; that determination is made by utilizing the elements test).

(in this case, appellant knowingly waived his right his claim on appeal that the specifications for abusive sexual contact and wrongful sexual contact were multiplicious, by acknowledging at trial that the elements test was not met and declining to argue that the specification of wrongful sexual contact was a lesser included offense of abusive sexual contact).

(where the government charged and tried abusive sexual contact and wrongful sexual contact offenses in the alternative for exigencies of proof because it believed the abusive sexual contact specification was more difficult to prove, both convictions may not stand and the finding of guilty for wrongful sexual contact must be disapproved).

(when a panel returns guilty findings for two specifications and it was agreed that these specifications were charged for exigencies of proof, it is incumbent either to consolidate or dismiss a specification).

(dismissal of specifications charged for exigencies of proof is particularly appropriate given the nuances and complexity of Article 120, UCMJ, which make charging in the alternative an unexceptional and often prudent decision).

2009 (September Term)

United
States v. Craig, 68 M.J. 399 (the receipt and
possession of the same child pornography
were not facially duplicative offenses where appellant received the
files of
the images on one medium and stored them on another).

2005

United
States v. Dillon, 61 M.J. 221 (the knowing use of one controlled
substance
and simultaneous unknowing use of another can result in two
specifications
under Article 112a, UCMJ, and they are not multiplicitous; it is
appropriate to
treat these charges separately because Article 112a is modeled on 21
U.S.C. §
841(a); the phrases, “a controlled substance” in 21 U.S.C. § 841(a)(1),
and “a
substance described in subsection (b)” in Article 112(a), UCMJ, were
intended
by Congress to permit separate specifications for the use of each
substance and
correspond to the statutory elements test adopted by this Court in United
States v. Teters).

2004

United
States v. Hudson, 59 MJ 357 (charges reflecting both
an
offense and a lesser-included offense are impermissibly multiplicious).

(absent
a timely
motion to dismiss, an unconditional guilty plea waives a multiplicity
claim
absent plain error; appellant may show plain error and overcome waiver
by
showing that the specifications are facially duplicative, that is,
factually
the same).

(the
test to
determine whether an offense is factually the same as another offense,
and
therefore lesser-included to that offense, is the “elements” test;
under this
test, the court considers whether each provision requires proof of a
fact which
the other does not; rather than adopting a literal application of the
elements
test, this Court resolves lesser-included claims by lining up elements
realistically and determining whether each element of the supposed
‘lesser’
offense is rationally derivative of one or more elements of the other
offense –
and vice versa).

(to
determine
whether offenses are factually the same, we review the factual conduct
alleged
in each specification as well as the providence inquiry conducted by
the
military judge at trial).

(in
this case,
it is clear that the accused’s offenses of breaking restriction and
unauthorized absence were factually distinguishable in two respects;
first, the
offense of breaking restriction required that that accused had been
ordered to
restriction in some specific manner by an authorized individual; by
contrast,
the accused’s unauthorized absence offense did not require proof of a
specific
restriction order; instead, it required the accused’s admission that he
departed his assigned unit without authority for a two day period;
there was a
distinct, independent obligation to be present for duty at the unit
regardless
of the terms of his restriction order; second, the accused’s offense of
unauthorized absence contained a temporal component which was not
present in
the breaking restriction offense; the accused’s breaking restriction
offense
required proof that he departed his unit at a single point in time on a
particular day; by contrast, the accused’s unauthorized absence offense
required proof that the accused remained absent from his unit for a
specified
two-day period of time; in fact, returning to the accused’s unit on the
second
day, thereby terminating the unauthorized absence offense, was an
element that
was both noted in the unauthorized absence specification and discussed
in the
corresponding providence inquiry; given these distinctions, the
accused’s
offenses of breaking restriction and unauthorized absence were not
factually
the same; accordingly, it was not plain error not to dismiss the
accused’s
two-day unauthorized absence as a lesser-included offense of breaking
restriction).